The Order in Council which Gordon Brown promised in his Chatham House speech, regarding "terrorist finance" has now been published online:
N.B. this Secondary Legislation is as long and as complicated as many a Primary Act of Parliament, and it also includes criminal penalties of up to 7 years in prison, which should surely have been properly debated and amended in Parliament.
The justification for the Order, is compliance with United Nations Security Council resolutions, as implied in the title.
However, the previous Orders referring to such resolutions specifically against the Taliban and Al Qaida, have been revoked by this Order, so this is, in fact a new, infinite General Power, which the NuLabour Government has grabbed for itself, without any debate about the details in Parliament.
Are they also intending to use it to "freeze the financial assets" of Northern Irish terrorists or so called animal rights extremists, since there is nothing whatsoever in this Order to prevent them from doing so ?
A worrying aspect of this Order is that according to Schedule 1 Evidence and Information the Treasury is only obliged to "take such steps as they consider appropriate"
The Treasury can "designate" anybody, and they are theonly judges of what they consider to be terrorist activity or association, for which they do not have to show any actual hard evidence.
By invoking this Order, the Treasury can demand any document or record from any British citzen or corporate person i.e. banks and financial institutions with subsidiaries in the UK, under a criminal penalty of up to 2 years in prison.
The Treasury can also hand this data over to any foreign Government.
There is also a secrecy provision, if they choose to only tell certain people or financial institutions, and not the general public about the freezing of assets, backed up by a criminal penalty of up to 2 years in prison.
There is a penalty of up to 7 years in prison for people who delliberately continue to allow funds transfers etc. in contravention of the Designation orders by the Treasury.
There also seems to be an extraordinary carte blanche:
7. An action done under this Schedule is not to be treated as a breach of any restriction imposed by statute or otherwise.
So kiss goodbye to the Common Law Duty of Confidentiality, the whole of the Data Protection Act, all of the Financial Services Authority rules on Confidentiality and Insider Trading, and any European Union Directive etc.
How can this be right ?
There also appears to a complete circumvention of the still as yet not in force, but likely to be so early next year, Regulation of Investigatory Powers Act 2000 Part III dealing with Encrypted data.
"document" includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form;
i.e. you will be forced to hand over the plaintext to encrypted financial data, without even any of the weak safeguards provided by RIPA Part III and the Code of Practice, to which we contributed to the public consultation on, this summer.
Effectively this is equivalent to a RIPA Section 49 Disclosure Notice, but without any of the safeguards and independent oversight which is supposed to be provided by the various RIPA Commissioners and the Chairman of the Financial Services Authority.
Any bank or financial institution or individual who is served with both a RIPA section 49 Disclosure Notice and has some or all of the same information demanded of them by someone using the this Treasury Order, will be in an impossible position with regard to the RIPA Tipping Off criminal offence and this Treasury Order Confidentiality criminal offence.
There is also a "Get Out of Jail Free Card" for the Treasury, namely:
(2) No contravention by the Crown of a provision of this Order makes the Crown criminally liable;
What possible justification is there for the Treasury to exempt itself from criminal liability, if they do not intend to get up to sneaky and illegal activities ?
Is the real purpose of this Order to provide a firmer legal basis on which to continue to snoop on and data mine the SWIFT international financial network etc., rather than to actually freeze alleged terrorist financial assets ?
How else is the Chancellor's pipedream of a "Bletchley Park" style "forensic accounting" team meant to work ?
This Order imports the faulty "definition of terrorism" almost word for word from the Terrorism Act 2000, including the never used and overbroad
"is designed seriously to interfere with or seriously to disrupt an electronic system."
For no good reason, it does not include the reference to "Proscribed Organisations" i.e. those named on the official list of proscribed terrorist groups, which still does not include the Taliban !
"(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."
One would have thought that Proscribed Terrorist Groups would be especially relevant to terrorist finance.
Is any financial institution going to stand up for the privacy of its innocent customers, when faced with an overbroad data mining or snooping demand by the Treasury or by the infinite number of people and organisations which this Order allows it to delegate its powers to ?
The delegation of of powers to other public authorities was a hot topic of debate on the controversial Legislative and Regulatory Reform Bill, but Gordon Brown seems to have ignored all that in this Order, and given himself infinite powers of delegation under Section 16 of the Order.
16. --(1) The Treasury may, to such extent and subject to such restrictions and conditions as they may think proper, delegate or authorise the delegation of any of their functions under this Order to any person or description of persons.
Anyone who thinks that Gordon Brown will not be even more of a control freak as Prime Minister than Tony Blair, should heed the warnings plainly visible in this Statutory Instrument.
The Opposition parties should demand that the Chancellor icomplies with the Regulation of Investigatory Powers Act
Part III Code of Practice, or comes up with an equivalent Stautitory Code of Practice to regulate how these infinite powers are used, to reassure the public and the private sector that they will not be abused by corrupt ot incompetent Treasury officials, and that our innocent private financial data is not being sent to corrupt or incompetent foreign governments and officials.
This Statutory Instrument 2006 No. 2657
The Terrorism (United Nations Measures) Order 2006, should not be used to perpetuate an ongoing or future version of the SWIFT scandal.